Returning the Alien Tort Statute to Obscurity

Abstract

The Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum Co. — imposing a territorial limit on claims under the Alien Tort Statute (ATS) — seems to leave little room for the ATS to operate. For some, that may be grounds for criticism. But the better view is that Kiobel largely returns the ATS to the modest role its drafters envisioned for it.

This essay makes three quick points about Kiobel and its implications. First, Kiobel, properly understood, does not limit ATS jurisdiction directly; it limits the extraterritorial reach of U.S.-law causes of action. Where all parties are aliens (as in Kiobel), that limit also precludes federal jurisdiction, because there is no source of jurisdiction under Article III of the Constitution. But where the defendant is a U.S. citizen, there should be no objection to ATS jurisdiction even if the alleged conduct is extraterritorial; the court simply cannot apply a federal common law cause of action to it.

Second, as a limit on extraterritorial causes of action, Kiobel is consistent with the background assumptions of the time the ATS was drafted. The traditional common law rule was that tort claims were governed by the place they arose. Aliens suing in U.S. court for injuries abroad would not expect their claims to be governed by U.S. substantive law (though under appropriate circumstances they would expect U.S. courts to resolve their claims).

Third, within the 1789 Judiciary Act, the language that has come to be called the ATS played only a secondary role. Section 11 gave jurisdiction over alien claims in excess of $500 to federal circuit courts. In general, other alien claims would have had to be brought in state court. But Section 9 allowed claims for torts in violation of international law to be brought in federal district courts even if they did not meet the amount in controversy required by Section 11. As explained below, that approximates the situation after Kiobel, if Kiobel is read correctly. Alien-vs.-U.S.-citizen ATS claims should be allowed (though with a foreign-law cause of action if arising abroad); however, those claims could as well be brought under diversity jurisdiction unless they fail to meet the modern amount-in-controversy requirement.